Peng Ling v Circuit Judge Alison Lindsay and Another

JudgeKearns P.
Judgment Date15 May 2015
Neutral Citation[2015] IEHC 290
CourtHigh Court
Date15 May 2015

[2015] IEHC 290


[No. 452JR/2014]
Ling v Circuit Judge Lindsay & Anor







Criminal – Motor vehicle offence – Order of certiorari – Road Traffic Act, 1961 – Duration of disqualification.

Facts: Following a conviction on two charges of driving with no insurance and a four year disqualification, the applicant sought an order of certiorari quashing the orders of the Circuit Court. The applicant had pleaded guilty for the offences. The applicant contended that the respondent erred in law and failed to interpret s. 26(5)(a) of the Road Traffic Act 1961, relating to the period of disqualification. The applicant argued that the respondent erred in law while applying s. 26(5)(a) of the Road Traffic Act 1961 in case of first offence. The applicant further contended that the respondent failed to mention that the four year disqualification was imposed as mandated by s. 26(5)(a).

Mr. Justice Nicholas Kearns held that the application for an order of certiorari quashing the orders of the Circuit Court would be granted. The Court held that the respondent erred in law in interpreting s. 26(5)(a) of the Road Traffic Act 1961 for the first offence. The Court found that the disqualification would be wrongfully recorded as being in respect of the first offence. The Court remitted the matter to the concerned Court for sentencing and the imposition of the appropriate period of disqualification.


JUDGMENT of Kearns P. delivered on the 15th day of May, 2015


The applicant seeks an order of certiorari quashing the decisions of the respondent made on the 9 th April, 2014, 11 th April, 2014, and 30 th May, 2014 convicting the applicant of the offence of driving without insurance contrary to ss.56 (1) and (3) of the Road Traffic Act, 1961 ('the 1961 Act') as amended by s. 18 of the Road Traffic Act, 2006 and imposing a four year disqualification on the applicant.


Declarations are also sought that the respondent erred in law in relation to her interpretation of s.26(5)(a) of the Road Traffic Act 1961 as inserted by s.65 of the Road Traffic Act 2010 and by failing to order a consultative case stated to the Supreme Court under s. 16 of the Courts of Justice Act 1947.


The applicant is a Chinese national who came to Ireland in 2001. He is the primary carer for his teenage daughter and works as a pizzeria chef in Dublin.


On the 6 th December, 2011 the applicant was stopped by Garda Matthew H. Lennon at Lower Mayor Street, Dublin 1 for driving without insurance. On the 11 th December, 2011 the applicant was again stopped by Garda Lennon for driving with no insurance, this time at Upper Sheriff Street, Dublin 1. The applicant was prosecuted on two charges under ss. 56 (1) and (3) of the 1961 Act as amended and on the 27 th September, 2013 he pleaded guilty in respect of both charges before the District Court. The applicant was fined €100 and disqualified from driving for a period of forty years in respect of the first offence, while the District Judge marked the second offence as "taken into consideration".


The applicant appealed against the severity of the penalty imposed by the District Court and the matter was heard by the respondent at Dublin Circuit Court on the 9 th April, 2014. The respondent reduced the driving ban from forty to four years and imposed a €100 fine. The Circuit Court judge indicated that the disqualification was mandatory and was imposed in respect of the 6 th December offence by reference to section 26(5)(a) of the 1961 Act as amended.


The matter was re-entered on the 11 th April, 2014 when it was contended on behalf of the applicant that the respondent had a discretion not to convict him for one of the offences and that, consequently, the mandatory driving ban would not apply. The respondent indicated that while she held some sympathy for the applicant, section 26(5)(a) was a mandatory provision and she refused to vary her order.


The matter came before the respondent again on the 12 th May, 2014 and both parties were directed to file written submissions in advance of a further hearing on the 30 th May, 2014. At that hearing the respondent indicated that she had read the submissions and she afforded counsel for the applicant the opportunity to make further oral submissions. Counsel on behalf of the applicant proceeded to make submissions in relation to the correct interpretation of the statute and the possibility of treating both convictions conjointly. It was submitted that the court was not functus officio on that date and submissions were made in relation to having a case stated pursuant to s. 16 of the Courts of Justice Act, 1947.


The respondent issued an ex tempore ruling in which she affirmed the previous orders of the 9 th and 11 th April, 2014. The respondent declined to refer a consultative case stated pursuant to s,16 of the Courts of Justice Act, 1947. The learned Circuit Court judge stated that the statutory provision was clear and that the penalty was mandatory.


Leave to apply for the reliefs sought by way of judicial review was granted by Baker J. on 28 th July, 2014.


Section 26(5) of the Road Traffic Act 1961 as inserted by s.65 of the Road Traffic Act 2010 states as follows-


2 "(5) (a) Subject to paragraph (b), the period of disqualification specified in a consequential disqualification order shall, where the person to whom the order relates is convicted of an offence under section 52 or 53 tried summarily or under section 56, be not less than 2 years in the case of a first offence under the section concerned and not less than 4 years in the case of a second or any subsequent offence under the same section committed within the period of 3 years from the date of the commission of the previous offence or, in the case of more than one such offence, the last such offence.


(b) Where a person is convicted of an offence under section 52 tried summarily or under section 56, the court may, in the case of a first offence under the section concerned, where it is satisfied that a special reason (which it shall specify when making its order) has been proved by the convicted person to exist in his or her particular case to justify such a course-


(i) decline to make a consequential disqualification order, or


(ii) specify a period of disqualification in the consequential disqualification order of less than 1 year."


Counsel for the Director of Public Prosecutions submits that even if the respondent erred in her interpretation of the relevant statutory provisions, which is not accepted, such an error was one within jurisdiction and judicial review does not lie. In this regard, counsel referred the Court to the decision in State (Daly) v. Ruane [1988] ILRM 117 wherein O'Hanlon J. stated -

"Relief by way of certiorari is only appropriate in a limited category of cases. Generally speaking it involves the applicant in showing that the inferior Court or tribunal acted without jurisdiction, or in excess of jurisdiction, or in disregard of fair procedures, so that the applicant's rights to natural or constitutional justice were violated… "


…What must be stressed is that the certiorari procedure cannot be utilised to convert the High Court into a court of appeal from all decisions of the District Court, with the court being required to embark upon a re-examination of the evidence given before the lower court and a re-assessment of all submissions made during the course of the hearings in the lower court."


Counsel for the applicant made lengthy submissions on this point. It was stated that judicial review is appropriate as there is no alternative remedy available to the applicant and that if the applicant's submissions are correct, the error of the respondent is one which goes to jurisdiction. The Court was referred to the principles set out in State (Holland) v. Kennedy [1977] IR 193 and to Hogan and Morgan's Administrative Law in Ireland textbook wherein the authors state:-

"Traditionally not every error committed by an administrative body or lower court will affect the jurisdiction of that body so as to invalidate the resulting decision. The question of which errors are jurisdictional is an intractable one and is linked to questions of statutory interpretation and judicial policies"


The authors go on to state that:-

"No clear picture emerges from a consideration of the modern Irish cases, save that there is a trend towards treating all decisive errors of law as jurisdictional."


The Court accepts the submissions of the applicant on this preliminary issue and finds that, in all the circumstances of this case, judicial review is an appropriate remedy as the grounds of challenge relate to the jurisdiction of the Circuit Court judge.


Section 16 of the Courts of Justice Act, 1947 provides as follows:-

"A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than a re-hearing, under section 196 of the Income Tax Act, 1918, of any such appeal as is referred to in the said section) pending before him, refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated."


Counsel for the applicant accepts that the Supreme Court in McKenna v. Deery [1998] 1 I.R. 62 acknowledged that the Superior Courts...

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